Whose Egg Is It, Anyway? An Embryo-Custody Battle

She’s desperate to bear a child; he refuses to be the father. While Augusta and Randy Roman duke it out in court, three embryos they created together are on ice. Welcome to the custody battle of the future.

By Louise Farr

Bleak Odds for Pregnancy
Five years ago, when she was 40, Augusta Roman’s odds of becoming pregnant with the help of a fertility specialist were 20 to 25 percent, according to her clinic doctor, Vicki Schnell. Now, even if Augusta is awarded the embryos and they survive thawing, the odds of her conceiving will have dropped to around 10 percent. According to the Centers for Disease Control, only 16.5 percent of non-donor frozen embryo transfers result in live births among women age 41 to 42 (the CDC doesn’t track this statistic for older would-be mothers). The likelihood of a successful midlife pregnancy is even lower when you factor in the women who drop out simply because they don’t have enough viable eggs (which is why older women are increasingly reliant on eggs donated by women in their 20s and early 30s).
Those bleak odds did not weigh heavily on Augusta’s mind on the warm March day in 2002 when she and Randy initialed a sheaf of consent forms in a small room at the Center of Reproductive Medicine. The couple signed off on potential embryo-transfer medical risks, such as infection and multiple gestations. The paperwork also stated that each embryo was considered joint property "based on currently accepted principles." When asked to decide on "disposition" of this property should the couple divorce, both Randy and Augusta initialed the box giving the clinic permission to discard the embryos.
Cognizant of couples’ giddy, baby-centered state of mind, Schnell, who is the center’s founder and director, always includes a cover letter stressing the importance of reading the forms carefully. "I’ve had people who want to initial everything and not read it," she says. "I will not let them do that." Her consent forms also warned of possible psychological strains that high-tech baby-making can put on a marriage. "There have been cases where it does bring them to the edge of divorce," she says. "But it’s usually well before [egg] retrieval."
Schnell recommends that couples go to at least one counseling session before they undergo IVF. The Romans chose not to, and Schnell did not force the issue. Later, in court, Randy (who declined to be interviewed for this article) would testify that Augusta didn’t think they needed it. That’s correct, she says, "but from his treatment and support of me, I thought we were in it together. There was no doubt in my mind. And who would think about divorce when you’re trying to have a baby, with your husband encouraging you?"
After Randy broke the news, Augusta, in shock but still hopeful that he would apologize and relent, administered her hormone shot. Neither of them slept, she says. But this was not a case of temporary cold feet. For two years, it turned out, her husband had harbored secret doubts about their relationship. "In my heart, there was just this little nagging, this little tweak going on that something here isn’t right," Randy would say later in court. He added how much he regretted waiting so long to speak his mind. Learning of the couple’s impasse and expecting them to enter counseling, the fertility center put the three embryos that had developed enough to undergo freezing into a liquid-nitrogen storage tank. "I was thinking, ‘Okay, maybe we’ll come out of this stronger, with more maturity,’" Augusta says.
But the counseling sessions — first with a therapist, then with a pastor — foundered. Suddenly, Augusta says, the husband she thought had admired her for her strength was claiming that he needed to regain control of the family. "He said, ‘Maybe if we had sex, the counseling would go faster,’" she recalls. "Now I’m going to give him sex to negotiate for a successful counseling session?"